Over the past two years, we have received an increasing number of inquiries from clients regarding their return to the office policies. While some workers object to the end of remote work due to lifestyle preferences, others have responded to the employer’s directions by producing medical information that requests that the employee be allowed to continue working from home as an accommodation under the Americans with Disabilities Act. If the company responds that the employee cannot perform the job’s essential functions from home, some employees respond that by allowing him or her to work remotely during the pandemic, the employer has waived any claim that the job cannot be performed remotely.
In July, the Equal Employment Opportunity Commission issued an enforcement guidance covering the interaction between the ADA and COVID-19. In its response to Question D.15, the EEOC said, “The fact that an employer temporarily excused performance of one or more essential functions when it closed the workplace and enabled employees to telework for the purpose of protecting their safety from COVID-19, or otherwise chose to permit telework, does not mean that the employer permanently changed a job’s essential functions, that telework is always a feasible accommodation, or that it does not pose an undue hardship.”
In other words, by allowing remote work in response to the pandemic, employers do not admit that the job can be performed remotely in the current business environment. The ADA only requires accommodations that permit the worker to perform the essential functions of the job. However, nothing prevents the employer from voluntarily waiving some of those essential functions on a temporary basis. Such waiver does not create a binding precedent for future accommodation decisions that need to be made on a case-by-case basis.
On Tuesday, Parker Poe will present a webinar on accommodating mental disabilities in the workplace. Among other issues, we will cover how the employer can use job descriptions and other means to explain why in-person attendance is necessary to fulfill a job’s essential functions. While employers should not automatically reject a request for remote work based on a medical issue, they also should not feel pressured into granting the request based only on measures enacted during the COVID-19 pandemic.
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